Moore v. Burdine

• Decision Date: 17 May 1937
• Docket Number: 16115
• Citation: 174 So. 279
• Court: Court of Appeal of Louisiana — District of US
• Parties: MOORE v. BURDINE et al

174 So. 279

MOORE v. BURDINE et al

No. 16115

Court of Appeal of Louisiana, Orleans.

May 17, 1937

Rehearing denied June 14, 1937.

Webb M Mize, of Gulfport, and George E. Konrad and H. W. & H. M Robinson, all of New Orleans, for appellant.

Bentley G. Byrnes and Frederic C. Querens, both of New Orleans, for appellees.

OPINION

McCALEB Judge.

This suit was brought by C. Greer Moore, a real estate broker, doing business in New Orleans, La., against Mr. and Mrs. Wesley D. Burdine, also residents of that city, for the recovery of a certain brokerage commission, to which he claims to be entitled, for procuring a purchaser for property owned by the defendants in Pass Christian, Miss.

He alleges, in substance, that, during the period May 1, 1932, to August 8, 1932, the defendants were residents of Pass Christian, Miss., and were the owners of certain real estate situated there; that, during that time, he was a duly qualified real estate broker in and for the state of Mississippi and was verbally employed by the defendants, as such, on or about May 5, 1932, to sell, rent, or exchange the property owned by them; that, in accordance with his employment, and, as a result of his efforts, he secured a purchaser for defendants' property, viz., Gustave A. Schmidt of New Orleans, La., and that a transfer of title was effected on August 8, 1932. He further avers that the consideration of the sale from the defendants to the said Schmidt was $ 11,860; that the customary brokerage commission in the state of Mississippi is 5 per cent. of the purchase price and that he is therefore entitled to recover from the defendants the sum of $ 593. By supplemental petition, he alleged that his contract with the defendants was made in Mississippi and is covered by the laws of that state, which are pleaded in extenso.

After filing certain exceptions to the petition, which were overruled by the court below, the defendants answered, admitting that, during the period from May through August, 1932, they were residents of Pass Christian, Miss., and owned certain real estate situated in that city and that, at the present time, they are residents of New Orleans, La. They denied, however, that plaintiff was either employed by them or that he secured a purchaser for their property. They also filed a supplemental answer in which they set forth that the plaintiff is not entitled to sue for the claimed commission in the courts of Louisiana because he was engaged as a real estate broker in violation of the laws of this state, and attempted to render services for the defendants which were illegal.

The case was tried and evidence was heard respecting the question of plaintiff's employment by the defendants, his procurement of a purchaser for defendants' property, and the law of Mississippi said to be applicable to the facts of the case. The district judge, being of the opinion that the proof submitted by the plaintiff was insufficient to sustain his cause of action, dismissed the suit under the authority of Tonkel v. Moore et al., 162 Miss. 83, 137 So. 189. Plaintiff has appealed from the adverse decision.

Inasmuch as the trial judge applied the law of Mississippi in determining the rights of the parties in this case, we deem it appropriate to, first, consider whether the Mississippi law or the law of this state governs the matter.

We will assume, for the purpose of this discussion, that the plaintiff was hired by verbal contract as defendants' real estate broker to procure a purchaser for their property, situated on the Mississippi Gulf Coast, and that the plaintiff's efforts on defendants' behalf was the sole and efficient cause in bringing about the subsequent disposal of the real estate.

Plaintiff's version, respecting the contract of employment and the performance thereof, is as follows:

That he is a resident of the city of New Orleans and is engaged in the real estate business there, with offices in the Pere Marquette building; that, on May 3, 1932, Mr. Burdine, one of the defendants, wrote him a letter expressing the desire that plaintiff sell, trade, or rent the property of the defendants situated at Pass Christian, Miss.; that, a few days later, he called upon Mr. Burdine at Pass Christian, Miss., and was authorized by the latter to find a purchaser for the property. He concedes that he was not, either at the time of his employment or thereafter, a qualified real estate broker for the state of Louisiana, as provided for by Act No. 236 of 1920. He contends, however, that his principal real estate business in Louisiana is the handling of Mississippi Gulf Coast property and that the contract herein sued upon, being made in Mississippi, is governed by the laws of that state. He asserts that, after he was employed by Mr. Burdine to obtain a purchaser for the property, he returned to New Orleans and made several contacts with clients in that city, whom he believed were interested in Gulf Coast real estate; that, through his connections, he was able to contact one Schmidt and interest the latter in the defendants' property, and that, by his efforts, the defendants were subsequently able to consummate a deal with Schmidt whereby they traded their property in Pass Christian for Schmidt's property in New Orleans.

It will be seen from the foregoing that the verbal agreement was made in Mississippi. Therefore, under the accepted rule of comity between the several states of the Union, the law of Mississippi would ordinarily be applied by our courts, as it is well settled that the law of the place where the contract is made governs the rights of the parties. The American Law Institute's Restatement of the Conflict of Laws §343, informs: "Whether an agreement between two or more persons constitutes an authorization by one person that another may perform an act on his behalf is...